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23 June 2010
An independent, non-profit research organization has released a report entitled "Success is No Accident: Declining Workplace Safety Among Federal Jurisdiction Employers",(1) which criticizes the government's efforts to ensure the health and safety of workers in the federal jurisdiction. It is still too early to determine the full implications of the report; however, federal sector trade unions and workers' rights advocacy groups are likely to use the report to lobby for reform in the monitoring, inspection and enforcement of federal workplace health and safety. If they are successful, this report could provide the basis for the next significant evolution in workplace health and safety enforcement in Canada.
The report relies on interviews with federal sector health and safety inspectors, known as labour affairs officers, and key statistics, such as workplace injuries and fatalities, to show that while the fatality and injury rates in the provincial sector declined by 25% between 2002 and 2007, federal injury rates rose by 5% over the same period.(2) This increase is particularly startling in light of the large number of office workers in the federal jurisdiction.(3)
The report attributes the rise in injury rates to the fact that federal health and safety authorities, unlike provincial authorities, have not made a concerted effort to target high-risk workplaces, set injury reduction targets or hire more inspectors to inspect workplaces in order, as the report's author puts it, to "keep offending employers in line".(4) Among other things, the report recommends more proactive enforcement and harsher penalties for federally regulated employers that are governed in occupational health and safety matters under Part II of the Canada Labour Code.(5)
Inspectors are "overworked and underpaid"
This failure in federal occupational health and safety enforcement is found to be due, in part, to overburdened labour affairs officers. Labour affairs officers are charged with providing preventative services and enforcement functions in the federal sector. According to the report, in 2008 there were only 128 labour affairs officers responsible for monitoring and inspecting the workplaces where over 1 million workers work.(6) As a result of this understaffing, only 16% of very high-risk federal workplaces received two inspections per year and only 10% of high-risk federal workplaces received one inspection per year as mandated by the Labour Programme guidelines.(7)
Chronic understaffing is particularly dangerous under the voluntary compliance model adopted by Human Resources and Skills Development Canada. This model relies on the issuance of an Assurance of Voluntary Compliance - a document that identifies a health and safety violation and the steps that the employer volunteers to take to rectify the situation - as the preferred method of enforcement. In order to ensure compliance with an Assurance of Voluntary Compliance, labour affairs officers must revisit the workplace - an important follow-up step that often does not occur because labour affairs officers are understaffed.
In addition to being understaffed, the report notes that 91% of Canadian safety professionals earn more than the best-paid labour affairs officers.(8) Even when compared to public sector safety professionals, labour affairs officers are reported to be among the 12% worst paid.(9)
Regulator promotes voluntary compliance to detriment of enforcement
Labour affairs officers interviewed by the report's author attribute lax enforcement and the rise in fatality and injury rates, in part, to Human Resources and Skills Development Canada's "client-centric" approach. The client-centric approach strives to convince employers to comply voluntarily with health and safety obligations, rather than relying on coercive methods such as prosecution. The report suggests that while the client-centric approach is valuable in some situations, fostering voluntary compliance must be coupled with preventative inspections and harsh enforcement penalties, particularly for repeat offenders and high-risk workplaces.
Labour affairs officers also stated that Human Resources and Skills Development Canada encourages them to issue numerous assurances of voluntary compliance rather than issuing a direction, a legally binding order, which may lead to a prosecution. This is because Human Resources and Skills Development Canada's performance metrics view coercive measures such as directions and prosecutions as failures of the client-centric voluntary compliance model. As a result, labour affairs officers who seek to move to coercive compliance measures often lack the support of Human Resources and Skills Development Canada officials.
While the report highlights a number of systemic differences in workplace health and safety enforcement between the federal and provincial sectors, at least three additional differences not considered by the report are evident to federal sector employers and legal professionals.
As noted in the report, prosecutions in the federal jurisdiction under the Canada Labour Code are relatively rare and occur primarily after very serious, often fatal, workplace accidents. What the report does not note is that when these prosecutions do occur and convictions are obtained, the penalties imposed are far smaller than those imposed in provincial jurisdictions. In Alberta, for example, fines equal to or in excess of C$300,000 were regularly imposed between 2006 and 2009.(10) In Saskatchewan, fines equal to or in excess of C$200,000 were imposed in 2008 and 2009.(11) In Ontario, fines have been even more substantial: in one recent decision, Ford Motor Company of Canada was fined C$850,000 after two workers were killed in separate workplace accidents.
In contrast, fines in the federal sector are modest. Although the Canada Labour Code provides for a maximum fine of up to C$1 million,(12) fines rarely exceed C$200,000 and then only in the most serious workplace accidents. To date, only three fines in excess of C$200,000 have been imposed in the federal sector. The largest fine imposed in the federal sector - C$280,000 - imposed following a double fatality in an oxygen-deficient atmosphere - is modest compared to provincial jurisdictions.(13) In contrast, fines approaching the maximum allowable fines are not uncommon in Alberta, Saskatchewan and Ontario, particularly for repeat offenders.
A second notable difference is the method used to publicize workplace accidents and enforcement decisions. In all provincial jurisdictions, information about convictions under workplace health and safety legislation and the fines imposed is now prominently published. In Ontario and Saskatchewan, convictions under health and safety legislation are regularly announced in press releases which are then published on the regulators' websites.(14) In other provincial jurisdictions, convictions are published on the regulators' websites. In the federal sector, convictions are only briefly noted at the end of the Liaison Bulletin - a periodic electronic publication of Human Resources and Skills Development Canada. This distinction may reflect Human Resources and Skills Development Canada's preference for voluntary compliance compared to the provinces' more coercive approach, which favours the general and specific deterrence of a widely publicized conviction.
A third distinguishing feature is that individuals are rarely charged for violations of the health and safety provisions contained in the Canada Labour Code and its regulations.(15) In theory, the Canada Labour Code is sufficiently inclusive to charge individuals, but in practice, usually only employers are charged.(16) At the provincial level, individuals, including supervisors, directors and officers, are frequently charged along with corporate employers and constructors. The method of charging individuals varies. Health and safety legislation in Ontario has specific provisions that allows for individuals to be charged. In other jurisdictions, the definition of 'employer' is broad enough to include supervisors and officers and directors, and, as a result, individuals are charged under the employer provisions of health and safety legislation. Whatever the process, the prospect of personal liability creates an incentive for supervisors, officers and directors to take an active role in workplace health and safety and also acts as a general deterrent to non-compliance.
It is unclear at this early stage what kind of reform, if any, will flow from the report. However, organized labour and workers' advocacy groups have already demonstrated that they intend to use the report to push for improvements in workplace health and safety in federal workplaces. Just days after the report was released, organized labour and workers' advocacy groups issued press releases about the report. The Public Service Alliance of Canada, which represents federal public service workers, called on the federal government to commit to reducing workplace injury rates by 20% within the next five years.(17) Given early attempts to rely on the report to advocate reform, the federal government will likely be under pressure to increase health and safety enforcement. This report may be the beginning of the next significant change in workplace health and safety enforcement in Canada.
For further information on this topic please contact Cheryl A Edwards or Shane D Todd at Heenan Blaikie LLP by telephone (+1 416 360 6336), fax (+1 416 360 8425) or email (email@example.com or firstname.lastname@example.org).
(1) David MacDonald, "Success is no Accident: Declining Workplace Safety Among Federal Jurisdiction Employers" (April 2010) online at Canadian Centre for Policy Alternatives http://www.policyalternatives.ca/sites/default/files/uploads/publications/reports/docs/Success%20Is%20No%20Accident_0.pdf.
(2) Supra endnote 1 at page 3.
(3) Federally regulated workplaces include banks, airlines, railways and inter-provincial pipeline or trucking operations, among other operations. Almost half of federal sector workers work in government or in the banking industry and 76% of those workers work in office settings. See supra endnote 1 at page 7.
(4) Supra endnote 1 at page 23.
(5) RSC 1985, c L-2.
(6) Supra endnote 1 at page 4.
(7) Supra endnote 1 at page 15.
(8) Supra endnote 1 at page 13.
(9) Supra endnote 1 at page 13.
(10) Alberta, Ministry of Employment and Immigration, "Alberta OHS Prosecutions Penalties Summary 2004-2009", online at http://employment.alberta.ca/SFW/5538.html.
(11) Saskatchewan, Ministry of Advanced Education, Employment and Labour, "Enforcement, Accountability and Performance Measures", online at www.aeel.gov.sk.ca/enforcement-accountability.
(12) Supra endnote 5, ss 148(2).
(13) Canada, Human Resources and Skill Development Canada, "Liaison Bulletin No 78" (June 2009), online at www.hrsdc.gc.ca/eng/labour/health_safety/liaison/78.shtml.
(14) Ontario, Ministry of Labour, "Court Bulletins", online at www.labour.gov.on.ca/english/news/courtbulletins.php; Saskatchewan, Ministry of Advanced Education, Employment and Labour, "Enforcement, Accountability and Performance Measures", online at www.aeel.gov.sk.ca/enforcement-accountability.
(16) The Labour Code provides that "any person" who violates Part II of the code can be held liable. See supra endnote 5, ss 148(2).
(17) Public Service Alliance of Canada, News Release, "Harper government is endangering workers' health and safety" (April 28 2010), online at www.psac-afpc.org/news/2010/releases/20100428-e.shtml.
Jackie VanDerMeulen assisted in the preparation of this update.
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Shane D Todd